High Court · 2012

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 4.1.2012CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.5190 of 2002 R.Krishnamoorthy,Formerly Senior Factory Assistant,(Selection Grade),Chilling Center,Ambur. ... Petitioner -Vs.-1.The Special Officer, representing The Board of Directors, Tamil Nadu District Co-operative Milk-Producers Co-operative Union, Vellore-9.2.The Managing Director, Tamil Nadu District Co-operative Milk producers Co-operative Union, Vellore-9. ... Respondents Writ Petition is filed under Article 226 of the Constitution ofIndia praying to issue a Writ of Certiorarified Mandamus, callingfor the records of the first respondent in Pro.No.1122/Tho.U./2002dated 06.08.2003; and of the 2nd respondent in Pro.No.5585/FA/2000dated 21.08.2001, quash the said orders and issue consequentialdirections to the respondents to reinstate the petitioner in servicewith all consequential benefits such as back-pay, continuity ofservice etc.For petitioner : Mr.M.RaviFor respondents : Mr.S.V.Durai Solaimalai,Additional Government Pleader,for R1.Mr.R.Madanagopalfor R2. https://hcservices.ecourts.gov.in/hcservices/ O R D E R Writ Petition is filed praying to issue a Writ ofCertiorarified Mandamus, calling for the records of the firstrespondent in Pro.No.1122/Tho.U./2002 dated 06.08.2003; and of the 2ndrespondent in Pro.No.5585/FA/2000 dated 21.08.2001, quash the saidorders and issue consequential directions to the respondents toreinstate the petitioner in service with all consequential benefitssuch as back-pay, continuity of service, etc.2. Heard Mr.M.Ravi, learned counsel appearing for the petitioner;Mr.S.V.Durai Solaimalai, learned Additional Government Pleaderappearing for the first respondent and Mr.R.Madanagopal, learnedcounsel appearing for the second respondent.3. The writ petitioner in this case was appointed as mazdoor inthe second respondent Milk Producers Co-operative Union in the year1974 and thereafter promoted as Senior Factory Assistant. Whiledischarging his duty he was caught red-handed for removing 63 bags of½ litre milk packet belonging to the Union without appropriateauthorisation and consequently he was suspended. A memo has beenissued initiating disciplinary proceedings. Enquiry was conducted asper procedure and a punishment of dismissal from service was imposedby the second respondent. Challenging the same the writ petition hasbeen filed. 4. In the affidavit filed in support of the writ petition ithas been stated that an appeal has been filed with a delay and sincethere was no interim order was passed, petitioner has filed the writpetition. Para 9 of the affidavit reads as follows:-"9. I have submitted an Appeal dated25.1.2002 against the above order of punishment tothe first respondent with a request to condone thedelay in filing the Appeal and to stay the orderof punishment till the disposal of the Appeal. Noorder has been passed on the Appeal and no interimorder has been received."5. The appeal came to be disposed of by the first respondent on6.8.2003. Thereafter, the petitioner filed M.P.No.43428 of 2003 toamend the prayer in the writ petition, thereby challenging the orderof the first respondent appellate authority. That application wasallowed. No specific application raising additional groundschallenging the order of the first respondent appellate authority hasbeen filed. 6. At the time of final hearing, it is found that most of thegrounds raised in the writ petition are relating to factual aspects https://hcservices.ecourts.gov.in/hcservices/ of the delinquency alleged against the petitioner. The petitionerhaving preferred an appeal, should have withdrawn this writ petitionthen. Petitioner ought not to have pursued two parallel proceedings.On the contrary, when the appeal was dismissed, he has chosen onlyto amend the prayer in the writ petition without raising any legalplea by way of additional grounds, challenging the order of the firstrespondent. The grounds raised in the writ petition is only againstthe order of the disciplinary authority. 7. In any event, as rightly pointed out by the learned counselfor the respondents, the writ petition itself is not maintainable inview of the Larger Bench decision of this Court in K.Marappan – vs. -Deputy Registrar of Co-operative Societies, Namakkal reported in(2006)4 MLJ 641 = 2006(4) CTC 689=2006-4 L.W.495. Para 21 of thelarger Bench decision of this Court reads as follows:-"21. From the above discussion, the followingpropositions emerge:- (i) If a particular co-operative society canbe characterised as a 'State' within the meaningof Article 12 of the Constitution (applying thetests evolved by the Supreme Court in thatbehalf), it would also be 'an authority' withinthe meaning and for the purpose of Article 226 ofthe Constitution. In such a situation, an orderpassed by a society in violation of the bye-lawscan be corrected by way of writ petition. (ii) Applying the tests in Ajay Hasia it isheld that the respondent society carrying onbanking business cannot be termed as aninstrumentality of the State within the meaning ofArticle 12 of the Constitution. (iii) Even if a society cannot becharacterised as a 'State' within the meaning ofArticle 12 of the Constitution, even so a writwould lie against it to enforce a statutory publicduty cast upon the society. In such a case, it isunnecessary to go into the question whether thesociety is being treated as a 'person' or an'authority' within the meaning of Article 226 ofthe Constitution and what is material is thenature of the statutory duty placed upon it andthe Court will enforce such statutory public duty.Although it is not easy to define what a publicfunction or public duty is, it can reasonably saidthat such functions are similar to or closelyrelated to those performable by the State in its https://hcservices.ecourts.gov.in/hcservices/ sovereign capacity. (iv) A society, which is not a 'State' wouldnot normally be amenable to the writ jurisdictionunder Article 226 of the Constitution, but incertain circumstances, a writ may issue to suchprivate bodies or persons as there may bestatutory provisions which need to be compliedwith by all concerned including societies. If theyviolate such statutory provisions a writ would beissued for compliance of those provisions. (v) Where a Special Officer is appointed inrespect of a co-operative society which cannot becharacterised as a 'State' a writ would lie whenthe case falls under Clauses (iii) and (iv) above.(vi) The bye-laws made by a co-operativesociety registered under the Tamil Nadu Co-operative Societies Act, 1983 do not have theforce of law. Hence, where a society cannot becharacterised as a 'State', the service conditionsof its employees governed by its bye-laws cannotbe enforced through a writ petition. (vii) In the absence of specialcircumstances, the Court will not ordinarilyexercise power under Article 226 of theConstitution of India when the Act provides for analternative remedy. (viii) The decision in M.Thanikkachalam v.Madhuranthagam Agricultural Co-operative Society,2000 (4) CTC 556 is no longer good law, in view ofthe decision of the seven-Judge Bench of theSupreme Court in Pradeep Kumar Biswas case and theother decisions referred to here before. The reference is answered accordingly.Registry is directed to place the paper before theappropriate bench for its disposal."8. The respondent union is a cooperative society and the issueraised in the writ petition relates to disciplinary action against anindividual. It cannot be challenged by way of writ petition in viewof the Larger Bench decision. If the petitioner is aggrieved by theorder passed by the second respondent or that of the order in appealpassed by the first respondent, his remedy will be beforeappropriate higher authority or forum concerned. https://hcservices.ecourts.gov.in/hcservices/

9. In this regard, the learned counsel for the second respondentproduced a copy of the order passed in W.P.Nos.1454 and 7579 of 2000and 20978 of 2001 dated 13.8.2010 where the writ petitions filed bythe similarly placed employees were dismissed as withdrawn givingthem liberty to work out their remedy before the competent authorityunder the Tamil Nadu Shops and Establishments Act in respect of theproceedings initiated by Tamil Nadu Co-operative Milk ProducersFederation which is also a co-operative society and stated thatpetitioner can work out his remedy in the manner known to law. 10. In this case, the petitioner is a dismissed employee of thecooperative society. Hence, he should pursue his remedy before theappropriate authority as may be advised and the writ petition filedchallenging the order of the first respondent is not maintainable inview of the Larger Bench decision of this Court referred to above.11. Learned counsel for the petitioner pleaded that the writpetition has been admitted in the year 2002 and therefore, should notbe dismissed on the question of alternative remedy relying upon onthe Division Bench decision of this court in Ramachandra RexinsPrivate Ltd., Bangalore – vs. Customs, Excise and Gold (Control)Appellate Tribunal, Chennai and another reported in (2009)4 MLJ 417. 12. The decision in Ramachandra Rexins case will not apply tothe facts of the present case as in that case a plea of violationof principles of natural justice was raised in a proceedings beforethe Tribunal. The Division Bench also noted that an appeal againstsuch order would lie before the High Court and, therefore, on a pleaof violation of principles of natural justice, the writ petition wasadmitted and therefore, there was no need to dismiss the writpetition on the plea of alternative remedy. 13. The facts in the present case is different from the abovestated case. Most of the plea raised are on the factual aspects ofthe delinquency charged which have been found against the petitionerand confirmed in appeal. There is no statutory violation alleged.In view of the Larger Bench decision, where it is clearly held thatthe writ petition filed against the society will not maintainable,this writ petition has to fail. The petitioner in this case has not https://hcservices.ecourts.gov.in/hcservices/ raised any plea with regard to violation of principles of naturaljustice. Accordingly, the writ petition is dismissed for the abovesaid reasons. No costs.Sd/-Asst. Registrar/true copy/Sub Asst. Registrar.tsTo1.The Special Officer, representing The Board of Directors, Tamil Nadu District Co-operative Milk-Producers Co-operative Union, Vellore-9.2.The Managing Director, Tamil Nadu District Co-operative Milk producers Co-operative Union, Vellore-9. 1 cc To Mr.R.Madanagopal, Advocate Sr 5531 cc To Mr.M.Ravi, Advocate Sr 1151 W.P.No.5190 of 2002rsy[co]gp/20.1